PREM LAL LODHI Vs. DUKHNI BAI

JUDGEMENT

(1.) This appeal is preferred under Sec. 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 29-10- 2009 passed by the First Additional District Judge, Rajndngaon (CG) in Civil Suit No. 12-A/2008 wherein the said court denied the decree for specific performance but ordered in favour of the original appellant/plaintiff namely Prem Lal and against respondent No.1 to repay the amount of earnest money to the tune of Rs.61,000.00 with interest.

(2.) Original appellant/plaintiff filed a suit before the trial Court for specific performance of contract for land bearing survey No. 487/2 area 1.20 acres on the ground that respondent No.1 entered into agreement with him to sell the land in question for cash consideration of Rs.61,000.00 on 6/9/1998. It is pleaded that respondent No.1 handed over possession of land to appellant but did not execute the sale deed in his favour despite several requests made by him. It is further pleaded that on 13/2/2001 respondent No.1 sold the land in question to respondent No.2 who tried to possess the land that is why suit was filed. After hearing both parties, the trial court did not grant decree for specific performance but ordered for refund of earnest money as mentioned above.

(3.) Learned counsel for the appellant would submit that respondent No.1 received consideration amount and handed over possession to him, therefore, decree of specific performance ought to have been passed by the trial court. He would further submit that there was willingness and readiness on the part of original appellant but the trial court has overlooked this aspect of the matter. Proviso to Sec. 53-A of the Transfer of Property Act, 1882 is available to the original appellant, therefore, finding of the trial court is liable to be reversed.